ADMINISTRATIVE COLLUSION: HOW DELEGATION DIMINISHES

Transcription

1 ADMINISTRATIVE COLLUSION: HOW DELEGATION DIMINISHES THE COLLECTIVE CONGRESS Neomi Rao George Mason University School of Law New York University Law Review, Vol. 90, No. 5, Forthcoming 2015 George Mason University Legal Studies Research Paper Series LS George Mason University Law & Economics Research Paper Series This paper is available on the Social Science Research Network at ssrn.com/abstract=

2 RAO-FIN.DOCX(DO NOT DELETE) ARTICLES ADMINISTRATIVE COLLUSION: HOW DELEGATION DIMINISHES THE COLLECTIVE CONGRESS NEOMI RAO * This Article identifies a previously unexplored problem with the delegation of legislative power by focusing not on the discretion given to executive agencies, but instead on how delegations allow individual congressmen to control administration. Delegations create administrative discretion, discretion that members of Congress can influence through a variety of formal and informal mechanisms. Members have persistent incentives for delegation to agencies, because it is often easier to serve their interests through shaping administration than by passing legislation. To understand the particular problem of delegation, I introduce the concept of the collective Congress. Collective decisionmaking is a fundamental characteristic of the legislative power. The collective Congress serves an important separation of powers principle by aligning the ambitions of legislators with the power of Congress as an institution. Although members represent distinct interests, the Constitution allows members of Congress to exercise power only collectively and specifically precludes them from exercising any type of individual or executive power. Delegation, however, provides opportunities for individual legislators to influence administration and poses a serious separation of powers concern by fracturing the collective Congress. This insight undermines the conventional view that delegations will be self-correcting because Congress will jealously guard its lawmaking power from the executive. Instead, members of Congress will often prefer to collude and to share administrative power with the executive. As a result, delegation destroys the Madisonian checks and balances against excessive delegation. This structural failure suggests a need to reconsider judicial enforcement of the nondelegation doctrine and to implement political reforms to realign Congress with its collective power. INTRODUCTION I. THE CONVENTIONAL VIEW OF DELEGATIONS * Copyright 2015 by Neomi Rao, Associate Professor of Law, George Mason School of Law. For their comments and suggestions I thank Jonathan Adler, Jack Beermann, David Bernstein, Richard Fallon, C. Boyden Gray, Michael Greve, Kristin Hickman, Martha Minow, Jeremy Rabkin, Kevin Stack, Adam White, and Todd Zywicki. The paper benefited from thoughtful discussion at the Harvard Public Law Workshop and at the Law and Economics Center Research Roundtable on administrative law. The Law and Economics Center provided generous research support. 101

3 102 NEW YORK UNIVERSITY LAW REVIEW [Vol. 90:nnn A. Delegation Relinquishes Congressional Power B. The Conventional View in Judicial Doctrine II. DELEGATION BENEFITS MEMBERS OF CONGRESS A. Delegation Delights: The Individual Benefits of Delegation B. Party Polarization and Delegation C. Diminishing Returns from Delegation? III. THE COLLECTIVE CONGRESS AND THE PROBLEM OF DELEGATION A. The Collective Congress B. Delegation Fractures the Collective Congress IV. SHARED AMBITIONS: MADISON S NIGHTMARE A. Aligning the Ambitions of Congressmen with Congress B. Administrative Collusion V. CHECKING EXCESSIVE DELEGATIONS AND AVOIDING ADMINISTRATIVE COLLUSION A. Judicial Limits on Delegations B. Interpretation and Limits on Executive Power and Discretion C. Political Checks on Congressional Administration CONCLUSION INTRODUCTION The nondelegation doctrine is unquestionably a fundamental element of our constitutional system 1 and, despite claims of its death and general judicial indifference, it persists in legal challenges 2 and law reviews. 3 The central idea behind the doctrine is that Congress 1 Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting). The modern nondelegation doctrine states that Congress cannot delegate its lawmaking powers without an intelligible principle. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928). 2 The D.C. Circuit, on the front lines of reviewing agency discretion under openended delegations, periodically suggests a revival of the doctrine, only to face resistance from the Supreme Court. Compare Am. Trucking Ass ns v. EPA, 175 F.3d 1027, 1034 (D.C. Cir. 1999) (invalidating ozone regulations promulgated by the EPA as an unconstitutional delegation of congressional authority because section 109(b)(1) of the Clean Air Act lacks an intelligible principle ), with Whitman v. Am. Trucking Ass ns, 531 U.S. 457, 474 (2001) (upholding section 109(b)(1) as well within the outer limits of our nondelegation precedents ); see also Ass n of Am. R.Rs. v. U.S. Dep t of Transp., 721 F.3d 666, 674 (D.C. Cir. 2013) (holding that a statute that empowered Amtrak to jointly develop performance measures with the Federal Railroad Administration was an unconstitutional delegation of regulatory power to a private party), vacated and remanded, 135 S. Ct (2015) (holding Amtrak to be a government entity). 3 As Gary Lawson explains, The reasons for the doctrine s remarkable staying power are not mysterious. The delegation phenomenon raises fundamental questions

4 November 2015] ADMINISTRATIVE COLLUSION 103 cannot delegate its exclusively legislative powers to the executive or the courts, 4 because the Constitution vests lawmaking authority only in Congress. 5 The vesting of this power in a multimember legislature reflects a fundamental commitment to republican government and the representation of diverse interests in the lawmaking process. Accordingly, the prohibition on delegation is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. 6 The Constitution separates lawmaking from law execution to promote accountability and the rule of law, and thereby to safeguard individual liberty. 7 Limits on delegation are fundamental to the constitutional structure, yet expansive delegations provide the foundation for the modern administrative state. The judicial tolerance for such delegations depends on a practical view, that they are essential in a complex society, and also on a conventional legal view, that structural checks and balances will deter excessive delegations because Congress will jealously guard its lawmaking power from the executive. This Article argues the conventional legal understanding is wrong, or at least incomplete. Delegation undermines separation of powers, not only by expanding the power of executive agencies, but also by unraveling the institutional interests of Congress. The Constitution creates what I term the collective Congress the about democracy, accountability, and the enterprise of American governance. Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 332 (2002). For recent critiques, see Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV (2002); David B. Spence & Frank Cross, A Public Choice Case for the Administrative State, 89 GEO. L.J. 97 (2000). 4 See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, (1825) ( It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. ); see also A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935) ( The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. ). 5 U.S. CONST. art. I, 1 ( All legislative powers herein granted shall be vested in a Congress of the United States.... ). 6 Field v. Clark, 143 U.S. 649, 692 (1892). 7 Justices Samuel Alito and Clarence Thomas recently stressed the connection between the nondelegation doctrine and individual liberty. See Dep t of Transp. v. Ass n of Am. R.Rs., 135 S. Ct. 1225, 1237 (2015) (Alito, J., concurring) ( The principle that Congress cannot delegate away its vested powers exists to protect liberty. ); id. at 1255 (Thomas, J., concurring in the judgment) (arguing the judiciary s failure to enforce the nondelegation doctrine comes at the cost [of] our Constitution and the individual liberty it protects ).

5 104 NEW YORK UNIVERSITY LAW REVIEW [Vol. 90:nnn people s representatives may exercise legislative power only collectively. This serves important republican principles and aligns the myriad particular interests of congressmen with the institutional interests of Congress. Members will be invested in the difficult process of lawmaking for the public good because this is the only way to exercise power. Delegation, however, provides numerous benefits to legislators by allowing them to influence and to control administration. Individual legislators thus have persistent incentives to delegate, because they can serve their personal interests by shaping how agencies exercise their delegated authority. By providing individual opportunities for legislators, delegation realigns the ambitions of congressmen away from Congress and the constitutional lawmaking process. Lawmakers may prefer to collude, rather than compete, with executive agencies over administrative power and so the Madisonian checks and balances will not prevent excessive delegations. This Article identifies and analyzes this distinct and previously unrecognized constitutional problem arising from delegation. 8 In Part I, I explain how courts and scholars generally assume a conventional view of delegation as a zero-sum game in which Congress yields power to the executive and excessive delegations will be checked because Congress will jealously guard its lawmaking power from the executive. This understanding helps to explain the Supreme Court s refusal to enforce directly the nondelegation doctrine and also the framework of judicial deference to agency interpretations created under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 9 and United States v. Mead Corp The arguments here are offered in addition to the many trenchant criticisms raised by scholars against excessive delegations and the Supreme Court s refusal to enforce the nondelegation doctrine. They have argued the original meaning of the Constitution includes a nondelegation principle. E.g., Gary Lawson, Discretion as Delegation: The Proper Understanding of the Nondelegation Doctrine, 73 GEO. WASH. L. REV. 235, 236 (2005); Lawson, supra note 3, at ; Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 TUL. L. REV. 265, (2001). Others have suggested that delegations undermine democratic accountability and the lawmaking procedures of Article I, Section 7. E.g., DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993). Public choice theorists have observed that delegations increase the influence and control by special interests. Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 6 7 (1982) U.S. 837, (1984) (establishing a two-part test for judicial deference to administrative agency interpretations that considers first whether Congress has spoken clearly on the issue, and if not, whether the agency s interpretation is a reasonable construction of the statute).

6 November 2015] ADMINISTRATIVE COLLUSION 105 Part II analyzes how delegations benefit individual legislators, drawing from the political science and economics literature to demonstrate the myriad benefits members of Congress can realize from delegations, including reducing the costs of legislating, avoiding responsibility for particular regulations, and providing an opportunity to serve constituents and interest groups. Open-ended delegations give agencies discretion, and legislators can assert influence over that discretion through legislative mechanisms such as oversight and appropriations, but also through individual contacts with agencies and other forms of particularized control. Moreover, party polarization exacerbates the problem by shifting the interests of legislators away from Congress as an institution and toward identification with political party. Both delegations and polarization create an asymmetry they diminish Congress by providing members with individual opportunities, while at the same time fortifying the unitary executive and aligning the personal, institutional, and party interests of the President. Part III introduces the concept of the collective Congress. Just as the Constitution vests executive power in a unitary executive, it vests legislative power in a collective Congress. Members of Congress can exercise their lawmaking power only together, through deliberation and majority (or supermajority) action. Legislators represent many interests, but their goals can be achieved exclusively by working together to enact legislation. Collective lawmaking is thus the primary mechanism for aligning the interests of a multimember Congress and promoting the common good. Delegations fracture the collective Congress because they create administrative discretion that individual members can control and influence. This possibility of individual action shifts the focus, energy, and commitment of members of Congress away from lawmaking. Thus, delegation undermines separation of powers in a very distinct way, as Part IV explains. By separating the interests of congressmen from the interests of Congress, delegations undermine the Constitution s mechanism for a multimember Congress to represent its institutional interests. Collective lawmaking ties the interests of members to Congress, but delegation allows members to satisfy their interests individually through administration. The conventional view conceives of institutional competition between the Congress and the President but delegations fracture the collective U.S. 218 (2001) (limiting the application of Chevron deference to instances in which an agency has authority to act with the force of law and has exercised that authority).

7 106 NEW YORK UNIVERSITY LAW REVIEW [Vol. 90:nnn Congress, allowing for collusion between members of Congress and administrative agencies and eroding the structural rivalry that could check excessive delegations. Understanding the dynamic of delegation and the collusion between the political branches provides new reasons for revisiting the limits on the delegation of legislative power. Part V outlines potential judicial and political approaches to limiting excessive delegations. The importance of the nondelegation principle has been reaffirmed throughout our history, but reliance on structural checks and balances has proved unavailing. Developments within the administrative state suggest the courts should articulate and enforce a more robust nondelegation doctrine. In addition, the political branches can also rein in delegations, which may bolster both the collective Congress and the unitary executive. Excessive delegations have undermined individual liberty by allowing for the expansion of the administrative state outside the Constitution s requirements for accountability. The collective Congress provides a way to think about the problem of delegation at its source. I THE CONVENTIONAL VIEW OF DELEGATIONS The Supreme Court consistently affirms the importance of the nondelegation principle to the constitutional structure. 11 Yet the virtual death of the nondelegation doctrine, or at least the judicial and political tolerance of open-ended delegations to the executive, depends in part on a formalistic understanding of power in administration. 12 By focusing on Congress as a singular institution, courts and legal scholars have generally assumed that Congress relinquishes power when it delegates authority to agencies and that 11 See, e.g., Whitman v. Am. Trucking Ass ns, 531 U.S. 457, 472 (2001) ( Article I, 1, of the Constitution vests all legislative Powers herein granted... in a Congress of the United States. This text permits no delegation of those powers.... ); Pan. Ref. Co. v. Ryan, 293 U.S. 388, 430 (1935) ( [I]n every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. ); Field, 143 U.S. at 692 (explaining that nondelegation is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution ); see also cases cited supra note The traditional understanding of delegations in legal scholarship and in judicial decisions applies a kind of institutional formalism, treating Congress as a formal black box of legislative powers that diminish when authority is delegated to executive branch agencies. See Richard H. Pildes, Institutional Formalism and Realism in Constitutional and Public Law, 2013 SUP. CT. REV. 1, 2 (2013) ( [I]nstitutional formalism blinds courts to any more contingent, specific features of institutional behavior, or to the particular persons who happen to occupy the relevant offices, or to the ways in which the institution actually functions in particular eras.... ).

8 November 2015] ADMINISTRATIVE COLLUSION 107 structural competition between the branches will prevent Congress from delegating too much power. This basic assumption provides a foundational principle for the delegations that are a precondition for the modern administrative state. 13 The conventional view explains, at least in part, the Court s steadfast commitment to the principle of nondelegation and its simultaneous unwillingness to enforce limits on Congress s delegations of lawmaking power. This Part briefly identifies the conventional view and explains how it animates the Court s nondelegation doctrine and also serves as part of the framework for judicial deference to agency interpretations. A. Delegation Relinquishes Congressional Power This pervasive and conventional view of delegations reflects an assumption that Congress s policymaking authority is diminished whenever it delegates to the executive. In this formal view, Congress s legislative power is primarily based on controlling the details of lawmaking, and delegations yield that power to the executive. The power Congress loses when delegating, the President and the executive branch pick up through the discretion vested in administrative agencies. Delegations thus constitute a loss for Congress, because Congress as a whole retains less control over the specifics of policymaking. Furthermore, under the conventional view, political competition between Congress and the President should provide the necessary checks and incentives against excessive delegation. This understanding of nondelegation takes the Madisonian framework at face value ambition should counteract ambition with respect to control over policymaking. 14 For example, John Manning explains that [B]ecause Congress cedes substantial policymaking initiative to administrative agencies when it enacts open-ended rather than precise statutes, it already has a significant structural incentive to specify statutory policies. The separation of powers, by prohibiting 13 See Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 155 (1994) ( The Court s refusal to enforce the nondelegation doctrine seriously to strike down broad delegations of lawmaking power to the executive must be seen as the premise for all other checks and balances cases in the post- New Deal era. ). 14 See THE FEDERALIST NO. 51, at 268 (James Madison) (George W. Carey & James McClellan eds., 2001) ( [T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. ).

9 108 NEW YORK UNIVERSITY LAW REVIEW [Vol. 90:nnn Congress from exercising direct control over agency lawmaking, operates in effect as a structural nondelegation doctrine. 15 Similarly, Eric Posner and Adrian Vermeule argue that it is unlikely Congress would grant the President all lawmaking powers or even substantially greater powers than he already has because a dominant fact of modern government is that Congress and the President are institutional rivals along many dimensions. Distrust of executive agents frequently causes Congress to attempt to control the smallest details of executive action. 16 Daryl Levinson cites congressional delegations as the leading example of how branches fail to pursue their departmental ambitions or build empires. 17 Other scholars make similar arguments, assuming that the judiciary need not enforce the nondelegation doctrine in order to maintain the necessary separation of powers between the branches. The basic premise is that Congress will protect its own interests and can choose how to exercise its powers. Thomas Merrill explains it is implausible that Congress the historical rival of the Executive would give away all or even most of its powers.... [S]trict nondelegation is unnecessary to achieve lively checks and balances among the branches of government. 18 Similarly, the argument runs that there can be no congressional aggrandizement when Congress 15 John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223, 259 (2000) [hereinafter Manning, Canon of Avoidance]; see also John F. Manning, Textualism As a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 725 (1997) [hereinafter Manning, Textualism] ( [E]xecutory delegations exact a relatively stiff structural price a loss of legislative control over the policies left unspecified in the statutory text. For that reason, textualists feel relatively comfortable relying on structural incentives to deter delegations of lawmaking power to agencies and courts. ). 16 Posner & Vermeule, supra note 3, at See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 954 (2005) ( [T]he rise of the administrative state suggests that congressional abdication of legislative power to the executive is at least as much of a problem as congressional self-aggrandizement. ). 18 Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2148 (2004) (arguing that courts need not force Congress to make key policy judgments through the nondelegation doctrine); see also Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 147 (2006) ( In delegating, Congress is not hindering any other branch from performing its constitutional functions and there is no danger that Congress s own power will be overly limited, since Congress can always repeal or narrow the delegation. Thus... delegation should not be feared by those concerned with separation of powers. ); Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2359 (2006) ( If the animating ideal of the nondelegation principle is to ensure[]... that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will, perhaps we should rest assured that Congress will adequately police itself. ).

10 November 2015] ADMINISTRATIVE COLLUSION 109 delegates policymaking discretion. 19 Even those sympathetic to the enforcement of the nondelegation doctrine focus on the dangers of transferring power from Congress and concentrating power in the executive. 20 Some public choice theorists have also taken the traditional view that the delegation of power imposes a sufficient institutional cost on Congress such that courts need not police delegations. 21 A few critics of delegation, such as David Schoenbrod, have recognized the dangers of congressional control over administration and the benefits individual members may realize from delegation, 22 but such work remains the exception See, e.g., David J. Barron & Elena Kagan, Chevron s Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 222 (2001) (observing that the assumption of congressional aggrandizement is inconsistent with the decision to delegate broadly to agencies in the first instance, to lodge most of this power with executive rather than with independent agencies, and to accede to ever greater assertions of presidential control over the entire sphere of administrative activity ); Greene, supra note 13, at 155 ( [N]ow that the nondelegation doctrine no longer provides an enforceable rule against excessive delegation, the balance of power tips toward the executive every time Congress delegates lawmaking power. ). 20 See Rappaport, supra note 8, at (defending the formalist nondelegation doctrine and focusing on the constitutional problems of transferring legislative power to the executive); Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 479 (1989) ( [T]o the extent that the nondelegation doctrine is called upon to help enforce the structural commitment to separation of powers, its principal focus is the movement of power: is the authority of one branch being transferred to another, which will now possess a dangerous concentration of government power? ); MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 142 (1995) ( The system of separation of powers was established in order to prevent undue accretion of political power in one branch. Abandonment of the nondelegation doctrine effectively permits the executive branch to accumulate an almost unlimited amount of power.... ). 21 See DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 84 (1991) ( When Congress delegates power, it pays an institutional price because power is shifted from Congress to an agency. Whether legislators are dedicated public servants or rapacious political hacks, they cannot expect much benefit from their offices if they give all their power away. ); id. at 84 n.65 (noting the difference between self-aggrandizing enactments and other statutes that affect the separation of powers). 22 See SCHOENBROD, supra note 8, at 168 ( [The argument] that Congress will... protect its turf, fails because individual legislators gain from delegation, even if Congress as an institution loses. Individuals gain power and lose accountability. So legislators willingly delegate.... ). 23 See SOTIRIOS A. BARBER, THE CONSTITUTION AND THE DELEGATION OF CONGRESSIONAL POWER (1975) (discussing committee oversight as a proposed substitute for the nondelegation doctrine and arguing that [w]hen oversight becomes control, objections on separation of powers grounds are in order ); Steven G. Calabresi et al., The Rise and Fall of the Separation of Powers, 106 NW. U. L. REV. 527, 537 (2012) (arguing Congress has seized significant aspects of law execution authority through oversight and appropriations committees, a development linked in part to delegations of authority to agencies that committees oversee); H. Lee Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 CALIF. L. REV. 983, 1061 (1975)

11 110 NEW YORK UNIVERSITY LAW REVIEW [Vol. 90:nnn The predominant view of delegations assumes that Congress is an undifferentiated, institutional whole; that regulatory power is a zero-sum game in which Congress will compete for institutional power with the executive; and that, as a consequence, judicial review will generally be unnecessary to police delegations. B. The Conventional View in Judicial Doctrine The Supreme Court s decisions have relied on this conventional view of delegation and separation of powers, not only with respect to the nondelegation doctrine, but also in relation to the deference given to agency interpretations. The conventional view provides one rationale for the judiciary s failure to enforce directly the nondelegation doctrine, or at least not to second guess what constitutes an excessive delegation. Since the nation s founding, courts have been reluctant to police the boundaries of permissible delegations, in part because Congress can protect its own lawmaking power simply by withdrawing delegations or legislating more specifically. 24 The idea that delegations minimize congressional power is at the core of the constitutional analysis, and as explained below, this understanding is incomplete because it fails to account for how delegations expand the power of individual legislators. The Court often refers to congressional delegations as an increase in the executive s power with a concomitant diminution of Congress s authority: [I]t is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch. 25 The judicial concern has (discussing the problems that arise when Congress seeks to control administrative discretion through formal mechanisms such as the one-house legislative veto). 24 See Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, , 116 YALE L.J. 1636, 1691 (2007) ( While [David] Currie s studies of constitutional debates in late-eighteenth- and earlynineteenth-century Congresses reveal that those debates were punctuated by repeated assertions of the nondelegation principle, the early Supreme Court maintained an almost studied indifference to protecting Congress from itself. (citing DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD , at 73 74, 109, , 160, , , 255 (1997))). 25 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928); see also Loving v. United States, 517 U.S. 748, 758 (1996) ( Another strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties. ); Lujan v. Defenders of Wildlife, 504 U.S. 555, 604 (1992) (Blackmun, J., dissenting) ( Congress legislates in procedural shades of gray not to aggrandize its own power but to allow maximum Executive discretion in the attainment of Congress legislative goals. ); Mistretta v. United States, 488 U.S. 361, 395 (1989) ( [S]ince Congress did not unconstitutionally delegate its own authority, the Act does not unconstitutionally diminish Congress authority. ).

12 November 2015] ADMINISTRATIVE COLLUSION 111 focused on the scope of authority and discretion given to the executive, 26 and, particularly in recent cases, the potential dangers of combining lawmaking and law interpreting functions in administrative agencies. 27 As Justice Scalia has explained, it was understood that Congress could delegate lawmaking authority only at the expense of increasing the power of either the President or the courts. Most often, as a practical matter, it would be the President.... Thus, the need for delegation would have to be important enough to induce Congress to aggrandize its primary competitor for political power. 28 The Court conceptualizes delegations in the formal way as both an increase in the power of the executive and a diminishment of congressional authority. Assuming that delegations surrender legislative power, the Court generally does not invalidate overly broad delegations and instead leaves the remedy for such delegations to the political process. The Court asks only whether the statute provides an intelligible principle, and has determined that even the most capacious grants of authority satisfy this requirement. 29 The Court assumes that the scope of delegations should be largely self-policing, implicitly adopting the reasoning that Congress has both the personal motives and the constitutional means 30 to limit excessive delegations with new legislation, and this should prevent disproportionate accumulations of power in the executive. 31 Rivalry and competition between the branches will be sufficient to enforce the interests behind the nondelegation principle. This formal understanding of how delegations work undergirds the lack of direct enforcement of the 26 See Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 759 (D.D.C. 1971) ( The claim of undue delegation of legislative power broadly raises the challenge of undue power in the Executive and thus naturally involves consideration of the interrelated questions of the availability of appropriate restraints through provisions for administrative procedure and judicial review. ). 27 See Dep t of Transp. v. Ass n of Am. R.Rs., 135 S. Ct. 1225, 1244 (2015) (Thomas, J., concurring in the judgment) ( [The Constitution] and the writings surrounding it reflect a conviction that the power to make the law and the power to enforce it must be kept separate, particularly with respect to the regulation of private conduct. ). 28 Mistretta, 488 U.S. at 421 (Scalia, J., dissenting). 29 See Whitman v. Am. Trucking Ass ns, 531 U.S. 457, (2001) (gathering cases in which the Court has found an intelligible principle ). 30 THE FEDERALIST NO. 51, supra note 14, at 268 (James Madison). 31 See Mistretta, 488 U.S. at (internal quotation marks omitted) (upholding delegation of authority to the U.S. Sentencing Commission and explaining that separation of powers provides security against tyranny and a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other ).

13 112 NEW YORK UNIVERSITY LAW REVIEW [Vol. 90:nnn nondelegation doctrine. Unfortunately, as explained below, this understanding is incomplete, particularly as the modern administrative state has developed. 32 Admittedly, the Court s decisions often emphasize the linedrawing problem with judicial enforcement of the nondelegation doctrine. 33 But this difficulty cannot fully explain the Court s almost complete refusal to limit open-ended delegations, particularly since the Court repeatedly has reaffirmed the importance of the nondelegation principle to the constitutional structure. 34 The refusal to review delegations relates in part to practical concerns about the necessity of delegation in a complex modern society and the conventional legal view that structural checks render judicial intervention unnecessary. The courts face line-drawing problems in many other constitutional contexts, but when the concern for overreaching by one of the branches is great enough, the Court will find some judicially enforceable standards. 35 For instance, the Court has repeatedly suggested that self-aggrandizing actions by Congress (or the President) pose serious separation of powers problems. 36 The failure to enforce directly the nondelegation doctrine must turn in part on the understanding that delegations are not aggrandizing actions by Congress. Perhaps less obviously, the conventional view of delegations provides a supporting assumption for Chevron and Mead and the 32 See infra Part II (explaining the conventional view fails to account for incentives that individual legislators have for delegation). 33 See Mistretta, 488 U.S. at 415 (Scalia, J., dissenting) ( [T]he doctrine of unconstitutional delegation... is not an element readily enforceable by the courts. Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments... must be left to the officers executing the law and to the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree. ); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825) ( [T]he legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily. ). 34 See cases cited supra note Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1275, 1315 (2006). 36 See, e.g., Freytag v. Comm r, 501 U.S. 868, 878 (1991) ( Our separation-of-powers jurisprudence generally focuses on the danger of one branch s aggrandizing its power at the expense of another branch. ). Many scholars recognize aggrandizement as the sine qua non of a separation of powers violation. See, e.g., M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. PA. L. REV. 603, 608 (2001) ( Courts and most commentators are also committed to assuring that no one branch of government can dominate the others, thereby preserving some rough balance of authority among the branches or, as the idea is sometimes articulated, to prevent the aggrandizement of one branch at the expense of another. ).

14 November 2015] ADMINISTRATIVE COLLUSION 113 Supreme Court s deference to agency interpretations of ambiguous statutes. A variety of rationales have been offered to support Chevron. 37 An additional explanation for the Court s decisions might be the conventional view of delegation as yielding the policymaking power of Congress to agencies. Chevron articulates a prodelegation background rule and reinforces the idea that ambiguities and silences in a statute should be left to reasonable agency interpretations. 38 Chevron thus firmly holds Congress to its choice to delegate authority to the agency and allows the agency to exercise not just specifically delegated authority, but also authority reasonably found in statutory gaps. Judicial deference to agency interpretations forces Congress to bear the cost of delegations by assigning policymaking choices to the executive, Congress s political rival. Justice Scalia recently articulated precisely this explanation for Chevron: Congress cannot enlarge its own power through Chevron whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the executive and the judiciary, that someone else will be. (The executive, by the way the competing political branch is the less congenial repository of the power as far as Congress is concerned.) So Congress s incentive is to speak as clearly as possible on the matters it regards as important. 39 Justice Scalia specifically considers Chevron a mechanism for promoting separation of powers and encouraging more specificity from Congress when it delegates authority. The Court, and 37 See Thomas W. Merrill & Kristin E. Hickman, Chevron s Domain, 89 GEO. L.J. 833, (2001) (detailing various rationales for the Chevron doctrine, including the Constitution, federal common law, and a presumption about congressional intent); Symposium, Chevron at 30: Looking Back and Looking Forward, 83 FORDHAM L. REV. 475 (2014) (discussing various rationales offered to support Chevron). 38 See King v. Burwell, 135 S. Ct. 2480, 2488 (2015) (noting that the framework of Chevron deference is premised on the theory that a statute s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps (internal quotation marks omitted) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000))); see also Farina, supra note 20, at (criticizing Chevron on nondelegation grounds); Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827, 834 (1991) (explaining that Chevron drove the last nail in the sporadically reopened casket of the nondelegation doctrine ); Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 329 (2000) (referring to Chevron as the quintessential prodelegation canon ). 39 Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1341 (2013); see also Calabresi et al., supra note 23, at 545 ( [Chevron] worked to discourage unconstitutional delegations of power by putting Congress on notice that, if it delegated power, its institutional rival, the President, would be empowered and not the congressional oversight committees and subcommittees. ).

15 114 NEW YORK UNIVERSITY LAW REVIEW [Vol. 90:nnn particularly Justice Scalia, favors the stable background rule of Chevron, 40 in part because it maintains the competitive tension between the political branches and keeps the courts out of policymaking, allowing Congress to choose when and how it delegates authority. 41 Judicial deference to agency interpretation thus implicitly includes a view of the competitive tension maintained by giving a delegation its full (or perhaps sometimes more than its full) consequences. The Court s preference for executive branch lawmaking over judicial lawmaking could reasonably be thought to maintain separation of powers in this way, leaving corrections of excessive delegations to the political, not judicial, process. If Congress wishes to give up power in open-ended, ambiguous, or incomplete statutes, the Court will not prevent it from doing so. Instead, it will allow the executive branch to exercise significant administrative power. The Court has adopted rules of deference that seek to maintain political rivalry between the Congress and the executive and perhaps thereby to discourage excessive delegations. Recent opinions, however, suggest an emerging skepticism about whether expansive delegations combined with judicial deference to agency discretion adequately protect constitutional values and individual liberty. 42 The conventional view of delegation as a self-denying power helps to explain the Court s reluctance to enforce directly the nondelegation doctrine and the framework of deference afforded to administrative agencies. Under the prevailing legal doctrine, judicial enforcement should occur rarely (and in practice, never) because the competitive separation of powers dynamic should be sufficient to 40 See, e.g., City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013) ( Chevron thus provides a stable background rule against which Congress can legislate:... Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion. ). 41 See United States v. Mead Corp., 533 U.S. 218, 257 (2001) (Scalia, J., dissenting) ( Chevron sets forth an across-the-board presumption, which operates as a background rule of law against which Congress legislates: Ambiguity means Congress intended agency discretion. ). 42 See, e.g., Dep t of Transp. v. Ass n of Am. R.Rs., 135 S. Ct. 1225, (2015) (Thomas, J., concurring in the judgment) ( We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.... [T]he cost is to our Constitution and the individual liberty it protects. ); City of Arlington, 133 S. Ct. at 1886 (Roberts, C.J., dissenting) (arguing for the importance of judicial review to determine an agency s jurisdiction in part because of the dramatic shift in power over the last 50 years from Congress to the Executive a shift effected through the administrative agencies ).

16 November 2015] ADMINISTRATIVE COLLUSION 115 protect individual liberty and to prevent the expansion of federal power. II DELEGATION BENEFITS MEMBERS OF CONGRESS The conventional view correctly identifies the dramatic expansion of executive power resulting from delegations, yet it has an incomplete understanding of the political realities of delegation in Congress. Therefore, the conventional view cannot explain why structural safeguards have failed to prevent wholesale delegations of policymaking to the executive branch on many important subjects. This Part takes a more realistic view of Congress and its individual members in the context of delegation 43 and explains how delegation can serve the interests of individual legislators even as it undermines Congress as an institution. Political scientists have identified the many incentives members of Congress have to delegate to agencies. While such insights are well established in this literature, legal scholarship about separation of powers in the administrative state has largely ignored or skimmed over this dynamic and instead stuck to the conventional view. Here, I incorporate insights from the political science and economics literature because it sheds light on the particular separation of powers problem with delegation, which is that collective legislative power dissipates through delegations that benefit individual members. Delegation thus drives a wedge between the personal interests of legislators and the institutional interests of Congress, undermining the collective legislative process established to promote the public good. Party polarization also reinforces the dynamic by increasing delegations and by aligning the interests of congressmen to their parties rather than to Congress as an institution. This Part concludes by suggesting that delegation may ultimately prove to have diminishing benefits even to individual legislators. 43 Commentators with increasing frequency observe how the reality of administrative practice fails to fit with the formal view of administration. See, e.g., WILLIAM N. ESKRIDGE, JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION 10 (2010) ( The framers expected national lawmaking to be the product of the carefully deliberative structure established by Article I, Section 7:... Yet in the modern administrative state, commissions and bureaus promulgate most legally binding rules. ); Daniel A. Farber & Anne Joseph O Connell, The Lost World of Administrative Law, 92 TEX. L. REV. 1137, 1140 (2014) ( [T]he actual workings of the administrative state have increasingly diverged from the assumptions animating the [Administrative Procedure Act] and classical judicial decisions that followed. ).

17 116 NEW YORK UNIVERSITY LAW REVIEW [Vol. 90:nnn A. Delegation Delights: The Individual Benefits of Delegation Political scientists and economists offer various explanations for the incentives and dynamics of delegation. 44 This literature emphasizes the many benefits members of Congress can realize through delegation 45 and demonstrates the strong incentives individual legislators have to continue delegating, even though this might weaken the collective lawmaking power of Congress. First, delegation reduces the costs of legislating. The Constitution deliberately erects hurdles to the exercise of legislative power, requiring bicameralism and presentment for the passage of laws. The decision costs of reaching agreement increase, inter alia, with the specificity of the legislation, 46 its complexity, 47 or the amount of controversy it generates. 48 As Epstein and O Halloran posit, Congress will delegate to the executive when the external transaction costs of doing so are less than the internal transaction costs of making policy through the normal legislative process via committees. 49 Delegating some choices to agencies alleviates the chronic collective action problems inherent in legislating. Proponents of delegation such as Jerry Mashaw suggest that reducing the costs of lawmaking is a positive good, allowing Congress to provide more public goods in a manner that promotes agency responsiveness to social, political, and technological changes For a thorough overview of the literature, see DAVID EPSTEIN & SHARYN O HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATE POWERS (1999). 45 Scholars may disagree about the type of benefits realized by members of Congress or about the extent of the control exercised over administration some of those differences are discussed in this Part but there is widespread agreement that delegations occur because they provide benefits to legislators. 46 Kenneth A. Shepsle & Barry R. Weingast, Structure-Induced Equilibrium and Legislative Choice, 37 PUB. CHOICE 503, (1981). 47 See ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC 31 (2010) ( The complexity of policymaking and the rapid pace of change in the policy environment make it prohibitively costly for relatively underspecialized legislators, burdened with cumbersome processes of collective action in large-number bodies, to attempt to specify all policy choices themselves, even if they would want to. ); Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257, (1974) ( Transaction costs tend to increase rapidly with the number of parties whose agreement is necessary for the transaction.... [Hence legislatures] will delegate... more of the legislative function to bodies that do not produce rules through negotiation among a large number of people i.e., to executive and administrative agencies and to courts.... ). 48 See Ehrlich & Posner, supra note 47, at 267 ( [T]he costs of negotiation will be even higher when a proposed rule is controversial, that is, costly to a politically effective segment of the community. ). 49 EPSTEIN & O HALLORAN, supra note 44, at See Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political

18 November 2015] ADMINISTRATIVE COLLUSION 117 Others, however, have suggested that delegation disproportionately promotes private goods production by Congress goods enjoyed by specific individuals or groups, often at the expense of the public. Peter Aranson, Ernest Gellhorn, and Glen Robinson argue: [D]elegation reduces the legislator s marginal cost of private-goods production, which ceteris paribus, yields more legislation and more public-sector private-goods production. 51 Regardless of whether delegation is a net social good, delegations allow legislators to avoid specificity and therefore to reduce the cost of enacting legislation. Second, delegation may allow members of Congress to avoid responsibility for difficult choices. By charging an agency with implementation of the regulatory mandate, legislators... also avoid or at least disguise their responsibility for the consequences of the decisions.... Delegation of legislative authority to administrators shifts the responsibility for the costs and benefits public policies produce. 52 Open-ended statutes provide a general solution to a pressing problem, but leave the details to an administrative agency. Therefore, members can take credit for responding, but then shift blame to the agency for imposing regulatory costs. 53 Decisions, 1 J.L. ECON. & ORG. 81, 96 (1985) ( [I]t seems likely that the flexibility that is currently built into the processes of administrative governance by relatively broad delegations of statutory authority permits a more appropriate degree of administrative, or administration, responsiveness to the voter s will than would a strict nondelegation doctrine. ); see also Ehrlich & Posner, supra note 47, at 280 ( The importance of agencies, relative to courts, as sources of rules has increased dramatically, and this is consistent with the view that society is seeking to adapt to changes over time in the relative costs of different methods of producing rules. ); David B. Spence, A Public Choice Progressivism, Continued, 87 CORNELL L. REV. 397, 420 (2002) (arguing agencies have a type of accountability that can produce policy choices closer to voters preferences and that also reflect the benefits of information and expertise). 51 Aranson et al., supra note 8, at Morris P. Fiorina, Group Concentration and the Delegation of Legislative Authority, in REGULATORY POLICY AND THE SOCIAL SCIENCES 175, 187 (Roger G. Noll ed., 1985) [hereinafter Fiorina, Group Concentration]; see also R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 101 (1990) ( One method of masking legislators individual contributions [to policies that impose costs] is to delegate responsibility for making unpleasant decisions to the president, bureaucrats, regulatory commissioners.... Sometimes legislators know precisely what the executive will decide, but the process of delegation insulates them from political retribution. ); Morris P. Fiorina, Legislative Choice of Regulatory Forms: Legal Process or Administrative Process?, 39 PUB. CHOICE 33, (1982) (explaining that legislators may delegate to shift the responsibility for policy decisions). 53 See SCHOENBROD, supra note 8, at (arguing that delegation enhances legislators opportunities simultaneously to support the benefits of an action and oppose its costs, which is political heaven and delegation enables legislators to represent themselves to some constituents as supporting an action and to others as opposing it, which is also political heaven ); cf. FARBER & FRICKEY, supra note 21, at 81 (arguing against the pass the buck critique of delegations because rational voters will predict